Hughes v. Hughes

• Decision Date: 01 November 1996
• Citation: 685 So.2d 755
• Parties: Keith Shawn HUGHES v. Judith Jo Ann HUGHES. 2950732.
• Court: Alabama Court of Civil Appeals

Page 755

685 So.2d 755

Keith Shawn HUGHES v. Judith Jo Ann HUGHES.

2950732.

Court of Civil Appeals of Alabama.

Nov. 1, 1996.

Randolph P. Reaves, Montgomery, for Appellant.

Paul Christian Sasser, Jr., Montgomery, for Appellee.

L. CHARLES WRIGHT, Retired Appellate Judge.

The parties were divorced in June 1990. At that time the parties agreed to share legal and physical custody of their three minor children. In October 1990 the father filed a petition to modify custody. Following oral proceedings, the father was awarded legal and physical custody of the children. In 1995 the mother filed a petition to modify custody. Following oral proceedings, the trial court awarded legal custody to both parties and awarded physical custody of the oldest child to the mother. At the time of the hearing, the children were 13, 11, and 9.

The father appeals, contending that the trial court erred in changing the prior custodial arrangement.

The parent seeking modification of a previous order granting custody bears the stringent burden of proving that a change in custody will materially promote the child's best interests. Ex parte McLendon, 455 So.2d 863 (Ala.1984). The moving parent must demonstrate to the trial court that such a change in custody will more than offset the inherently disruptive effect caused by uprooting the child. McLendon.

When the trial court is presented evidence ore tenus, its determination is presumed correct and will not be disturbed on appeal unless it is so unsupported by the evidence as to be plainly and palpably wrong or unless an abuse of the trial court's discretion is shown. Nicholas v. Nicholas, 464 So.2d 527 (Ala.Civ.App.1985).

In its order the trial court made the following detailed findings of fact:

"The former husband has provided a stable home for the children wherein most of their basic needs are met. The former husband works long hours, and most of the day-to-day parenting is provided by their stepmother.... The children have an opportunity to be involved in many extracurricular activities, and she provides transportation and support in those activities. Both the former husband and the stepmother help the children with school work.

"There is one significant aspect of the children's well-being that concerns the court. There appears to be an emotional void in the lives of the children brought about by a number of factors. The former husband no doubt loves the children but seems to have difficulty expressing that love outwardly on a day-to-day basis. The court is also concerned about the parenting abilities of [the stepmother]. There were several incidents testified to that call into question her judgment and ability to cope with the situation in which she finds herself. The court recognizes the efforts made by the former husband and his wife to meet the daily needs of the children, but the court's concern goes much deeper. In particular, the oldest child ... and the stepmother have reached a point of obvious frustration in their relationship. The court realizes that [the oldest child's] behavior has made it very difficult to deal with him.

"During the court's interview with [the oldest child,] it found the thoughts expressed by him...